95 SENTENCING STRUCTURE LOUISIANA DEPARTMENT OF ...

SENTENCING STRUCTURELOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONSOCTOBER 15, 2010A. Basic Concepts of Good TimeOffenders who are sentenced to a fixed number of years to the Department ofCorrections for crimes committed before July, 1, 1982, will satisfy all of the legalrequirements for that sentence:After being in actual custody and earning good time that equal the lengthof the sentence imposed.Offenders who are sentence to a fixed number of years to the Department ofCorrections for crimes committed on or after July 1, 1982, will become eligible tobe released on parole supervision pursuant to R.S. 15:571.5.These offenders will satisfy all of the legal requirements for that sentence:After being in actual custody and being on successful parole supervisionequal to the length of the sentence imposed.A. DIMINUTION OF SENTENCE ELIGIBILITY-in accordance with DOC REG No. B-04-0011. 30/30-WITHOUT EARNING INCENTIVE WAGESAct 138 of the 1991 Regular Session, effective January 1, 1982, provides for theearning of 30 days good time for every 30 days in custody. It also allowed goodtime to be earned on jail time spent in custody prior to the imposition of sentence.This rate applies to inmates convicted of violent and non-violent crimes prior toJanuary 1, 1997, but only to those inmates convicted of a non-violent offense onor after January 1, 1997, or convicted on or after August 15, 20062. 35/30 – WITHOUT EARNING INCENTIVE WAGESAct 572 of the 2006 Regular Session, effective August 15,2006, provides for theearning of 35 days for every 30 days in actual custody, including the time spentin custody pursuant to C.Cr. P.Art. 880. Good time at the rate of 35 days forevery 30 days in actual custody shall be awarded only in lieu of incentive wages.Act 649 of the 2010 Regular Session, effective 10/15/2010, provides for theearning of 35 days good time for every 30 days in custody for offendersconvicted retroactive to January 01,1992. Violent offenders and Sex offendersare not eligible.* Inmates participating in a Community Resource Center, (a facilitydesignated by the Department to provide housing for inmates to remediatethe damage done following a natural disaster or emergency) may be eligible95

to earn thirty days of good time in addition to that otherwise authorized by law forevery thirty days of service in this program.2. 3/17 Rate – VIOLENT CRIMESAct 1099 of the 1995 Regular Session, effective January 01.1997 provides thatoffenders convicted a first time for a crime of violence as defined in La. R.S.14:2(b) which is committed on or after January 1, 1997, and who are otherwiseeligible to earn good time, shall earn diminution of sentence at a rate of threedays for every seventeen days in actual custody, including time spent in custodywith good behavior for which the inmate is eligible for jail credit; serves 85%.4. Certified Treatment and Rehabilitation Program Good Time Credits -in accordance with DOC REG No. B-04-003During the instant incarceration, a total of 540 days CTRP good time credit maybe earned by an offender earning regular good time. A total of 270 days CTRPgood time credit may be earned by an offender earning good time under Act1099 of the 1995 Regular Session.B. DIMINUTION OF SENTENCE INELIGIBLITY1. HABITUAL FELON CONVICTIONS - COURT ADJUDICATIONThe inmate has been sentenced on the instant offense under the HabitualOffender Law as set forth in La. R.S. 15:529.1, and also meets all of thecriteria as set forth in La. R.S. 15:571.3C.< Any prior or instant conviction listed in La. R.S. 15:571.3C1 (a) through(t) shall be used to meet the criteria as set forth in this section2. VIOLENT CRIMES< First Offense Violent Crimes - Court DiscretionThe inmate was sentenced for a crime of violence committed on orafter August 15, 1995 and the sentencing court denied or placedconditions on eligibility for diminution of sentence. C.Cr.P. Art.890.1. (Act 946 of the 1995 Regular Session)< Second Offense Violent Crime - No Court DiscretionDiminution of sentence shall not be allowed an inmate in thecustody of the Department if the instant offense is a second offense96

crime of violence as defined by La. R.S. 14:2(b) committed on orafter August 27, 1994, pursuant to La. R.S. 15:571.3B. (Act 150 ofthe 1994 2nd Extraordinary Session)< Court Designated Violent CrimeThe court can designate whether the crime involved is a crime ofviolence or an attempted crime of violence as defined orenumerated in La. R.S. 14:2(b). La. Art. 890.1.A (Act 697 of the1997 Regular Session). (Regardless if on COV list.)NOTE:Prior to August 15, 2001, the below crimes were considered aCrime of Violence:14:43.3 Oral Sexual Battery14:43.4 Aggravated Oral Sexual Battery3. SEX CRIMES< Sex Crime with Court DiscretionThe inmate is serving a sentence for a sex offense which wascommitted on or after August 27, 1994 and before August 15, 1999and the sentencing court denied or placed conditions on eligibilityfor the earning of good time pursuant to La. R.S. 15:537 (Act 110of the 1994 3 rd Extraordinary Session).< Sex Crime with No Court DiscretionThe inmate is serving a sentence for a sex offense which wascommitted on or after August 15, 1999 pursuant to La. R.S.15:537(A) (Act 1209 of the 1999 Regular Session). (Seeattachment #2)NOTE:Prior to August 15, 2001, the below sex crimes were used toDeny Good Time:14:43.4 Aggravated Oral Sexual Battery14:76 Bigamy14:77 Abetting in Bigamy14:89 Crime Against Nature< Sex Crime Second Offense-Specific Class-No Court DiscretionThe inmate has been convicted two or more times under the lawsof this state of any one or more of the following crimes where theinstant offense was committed on or after August 27, 1994,pursuant to La. R.S. 15:571.3C(4), (Act 149 of the 1994 3 rdExtraordinary Session); or the inmate has been convicted two ormore times under the laws of this state, any other state, or the97

federal government of any one or more of the following crimes orattempts to commit any of the following crimes where the instantoffense was committed on or after August 15, 1999, pursuant to La.R.S. 15:571.3C(4), (Act 223 of the 1999 Regular Session).1) 14:80 Carnal Knowledge of a juvenile2) 14:81 Indecent behavior with a juvenile3) 14:81.2 Molestation of a juvenile4) 14:78 Incest5) 14:78.1 Aggravated Incest< SEX CRIMES COMMITTED ON OR AFTER AUGUST 15, 2006The inmate has been convicted one or more times under thelaws of this state, any other state, or the federal government ofany one or more of the following crimes or attempts to commitany of the following crimes where the conviction for theinstant offense was on or after August 15, 2006, pursuant toAct 572 of the 2006 Regular Session.1) 14:80 Carnal Knowledge of a juvenile2) 14:81 Indecent behavior with a juvenile3) 14:81.2 Molestation of a juvenile4) 14:78 Incest5) 14:78.1 Aggravated IncestNOTE:Sex offenders must have an approved residence plan prior torelease on supervision in accordance with R.S. 15:541(14.1),pursuant to Act 26 of the 2006 Regular Session. (Seeattachment #3)4. STALKINGAn inmate who is convicted of a violation of R.S. 14:40.2 (Stalking), andthe offense was committed on or after August 15, 1999, shall be prohibitedfrom earning diminution of sentence at the discretion of the trial court,pursuant to La. R.S. 15:571.3C(5). (Act 963 of the 1999 RegularSession).5. LIFE SENTENCEInmates serving life sentences are ineligible to earn good time. However,Ainmates serving life sentences will be credited with good time earnedwhich will be applied toward diminution of their sentences at such time asthe life sentence might be commuted to a specific number of years.@(La. R.S. 15:571.3B.)98

6. JUVENILE LIFEAny inmate who was a 14 year old juvenile at the time of the commissionof any of the following crimes committed on or after August 27, 1994, ANDwho was sentenced as an adult under the provisions of La. Children’sCode Article 857 shall not be held past his 31 st birthday on the instantoffense for which he was convicted and sentenced: (Act 15 of the 19943 rd Extraordinary Session, effective August 27, 1994).< First degree Murder< Second degree murder< Aggravated kidnapping< Aggravated Rape< Aggravated battery when committed by the discharge of a firearm< Armed robbery when committed with a firearm< Forcible rape committed upon a child at least two years youngerthan the rapist (added by Act 1137 of the 1997 Regular Sessioneffective July 14, 1997).7. MEDICAL PAROLEIn accordance with La. R.S. 15:574.20(D) the parole term of an inmatereleased on medical parole shall be for the remainder of the inmate’ssentence, without diminution of sentence for good behavior.C. FORFEITURE OF GOOD TIME - In accordance with DOC REG No. B-04-0051. ESCAPESPrior to August 30, 1986 - inmates who escape prior to this date and areconvicted of escape in a court of law shall be required to forfeit all goodtime earned on that portion of his sentence served prior to his escape inaccordance with La. R.S. 15:571.4B(1) (Act 502 of the 1979 RegularSession).On or after August 30, 1986 - inmates who escape on or after this datemay forfeit good time earned in accordance with Department RegulationNo. B-04-005.** Pursuant to Tony Chamblee v. Richard Stalder, ET AL First Circuit #2003CA 0061.In this case, La R.S. 15:571.4B(1), (forfeiture of all good time earned on thatportion of the sentence served prior to an escape) does not apply. At the time of99

the escape, inmate Chamblee was housed at the City of Faith Transitional WorkProgram not at a correctional facility or in the custody of a law enforcementofficer or officer of the department. Forfeiture of good time by the Department ofPublic Safety and Corrections Aspecial court@ can only apply to persons whoescape from a “Correctional Facility, or from the lawful custody of any lawenforcement officer or officer of the department.@On or after August 15, 2004, an inmate serving a sentence and participating in aTransitional Work Program authorized by law, fails to report to or return from hisplanned employment or other activity under the program may forfeit all good timeearned on that portion of his sentence served prior to his escape. (ACT 43 of the2004 Regular Session)< Inmates who commit serious rule violations may be required toforfeit up to a maximum of 180 days of good time per offense. La.R.S. 15:571.4B(4) (Act 980 of the 1995 Regular Session).2. PAROLE VIOLATORSGranted Parole before August 15, 1997 for a crime committed afterJuly 26, 1972:Parole violators are required to forfeit all good time earned on thatportion of the sentence served prior to the granting of parole, up toa maximum of 180 daysGranted Parole on or after August 15, 1997:An inmate who has been granted regular parole on or after August15, 1997, should his parole be revoked for any reason, good timeearned prior to parole and good time that would have been earnedif parole had not been granted will be forfeited (includingeducational good time), as required by La. R.S. 15:571.4B(2) (Act820 of the 1997 Regular Session) and La. R.S. 15:574.4(I)(2).When the parole of a parolee has been revoked by the board for theviolation of the conditions of parole, the parolee shall be returned to thephysical custody of the Department and serve the remainder of hissentence as of the date of his release on parole subject to any credit fortime served for good behavior while on parole. (Act 792 of the 2010Regular Session)Critical comment: Offenses committed before July 26, 1972: Beebe v. Phelps, 650 F.2d 774ruled that inmates who were serving time for an offense committed before July 26, 1972 andgranted parole, will not forfeit any good time should their parole be revoked.100

D. PAROLE ELIGIBILITY - In accordance with DOC REG No. B-04-004Critical Comments: The commission date of the crime governs eligibility. (See Weaver v.Graham, 450 U.S. 24,29,101 S.Ct. 960, 964 (1981) and State v. Curtis, 363 So.2d 1375)NOTE:Inmates who are serving a term for an offense that was committedon or after July 1, 1982, pursuant to Act 762 of the 1981 RegularSession will have their parole eligibility dates computed inaccordance with their offender classification at the time of thatoffense.1. FIRST OFFENDERSInmates convicted of a first felony offense and who are otherwise eligiblefor parole, shall be eligible for parole consideration upon serving one-thirdof the sentence imposed. La. R.S. 15:574.4A(1).2. SECOND OFFENDERSInmates convicted of a second felony offense and who are otherwiseeligible for parole, shall be eligible for parole consideration upon servingone-half of the sentence imposed. La. R.S. 15:574.4A(1).3. OFFENDER CLASSIFICATIONSequential Rule - The number of sequential felonies committed for whichan inmate has been convicted. A second offender status can only resultfrom an offense committed after a first conviction, and third offender statuscan only result from an offense committed after a second conviction4. IMPACT PAROLEInmates otherwise eligible for parole, convicted of a non-violent first orsecond felony offense and committed to the DPS&C, for ten years or lessmay be eligible for intensive parole supervision upon successfulcompletion of intensive incarceration. La. R.S. 574.4A(2).5. VIOLENT CRIMESInmates convicted of a crime of violence, which is committed on or afterJanuary 1, 1997, and who are otherwise eligible for parole, shall serve atleast 85% of their sentence before receiving any parole consideration. La.R.S. 15:574.4B (Act 1099 of the 1995 Regular Session).6. ACT 790101

Unless eligible for parole at an earlier date, a person sentenced for a termor terms of imprisonment with or without benefit of parole for thirty years ormore shall be eligible for parole consideration upon serving twenty yearsof the term or terms of imprisonment in actual custody and upon reachingthe age of forty-five. This provision shall not apply to a person serving alife sentence unless the sentence has been commuted to a fixed term ofyears. La. R.S. 15:574.4A(3)(Act 790 of the 1990 Regular Session).However, a person convicted of a crime of violence committed on or after January 01, 1997 and nototherwise ineligible for parole shall serve at least 85% of the sentence imposed before beingeligible for parole under Act 790. (La. R.S. 15:574.4B)7. PARDONWhen the Governor (through a commutation of sentence) orders that aninmate is eligible for parole consideration after serving a portion of asentence, the parole eligibility date shall be computed as specified by thecommutation of sentence.NOTE:An inmate who has completed the good time requirements on a non-parolablesentence may be considered eligible for parole on other parolable sentenceswithin the term of incarceration. (See Ronald Glover v. Mary Cockerham, Et alNo. 431,819 Division “I” 19th JDC East Baton Rouge Parish ).E. PAROLE INELIGIBILITY1. THIRD OFFENDERSInmates convicted of a third or subsequent felony and committed to theDPS&C shall not be eligible for parole. La. R.S. 15:574.4A(1).2. LIFE SENTENCESNo inmate serving a life sentence shall be eligible for parole considerationuntil the life sentence has been commuted to a fixed term of years. La.R.S. 15:574.4B.3. PENDING CHARGESInmates may not be paroled while there is a pending indictment or formalcharge for any crime suspected of having been committed whileincarcerated. La. R.S. 15:574.4B.4. SERIAL SEX OFFENDER102

No inmate sentenced as a serial sex offender shall be eligible for parolewhen the instant sex offense was committed on or after August 15, 1999.(La. R.S. 15:537.(B), Act 1209 of the 1999 Regular Session).5. STATUTORILY NOT ELIGIBLE – “Please refer to the PED Hot List”Inmates convicted of certain crimes will not be eligible for paroleconsideration if the particular penalty statute under which they wereconvicted prohibits parole eligibility, even if the court fails to state that thesentence is imposed without benefit of parole. (Effective August 15,1999, pursuant to Act 94 of the 1999 Regular Session).< When the expressed orders of the sentencing court is lessthan the restrictions for parole than what the law requires, theDepartment will indicate parole eligibility in compliance withthe applicable law.< When the expressed orders of the sentencing court are morethan the restrictions for parole than what the law requires, theDepartment will indicate parole eligibility in compliance withthe expressed orders of the sentencing court.F. DNA – In accordance with DOC REG No. B-08-0161. Conviction Before September 1, 1999 - Full Term Release -A person who was convicted, adjudicated or enters into a plea agreementresulting in a conviction for a felony sex offense or other specified offensebefore September 1, 1999, and who was still serving a term ofconfinement in connection therewith on that date shall not be released inany manner, including parole, diminution of sentence (GT/PS), good time,furlough, work release, pre-release or release or release in any othermanner prior to the expiration of his maximum term of confinement (fullterm date) unless a DNA sample has been drawn. La. R.S. 15:609.C (Act737 of the 1997 Regular Session effective September 01, 1999) (Amendedby Act 487 of the 2003 Regular Session effective June 20, 2003.)2. Conviction on or after September 1, 1999 - No Release -Under no circumstance shall a person who is convicted, adjudicated orenters into a plea agreement resulting in a conviction on or afterSeptember 1, 1999, for a felony sex offense or other specified offense, bereleased in any manner including parole, diminution of sentence (GT/PS),good time, full term, furlough, work release, pre-release or release in anyother manner after such disposition unless and until a DNA sample hasbeen drawn. (La. R.S. 15:609) (Act 737 of the 1997 Regular Session103

effective September 1, 1999) (Amended by Act 487 of the 2003 RegularSession, effective June 20, 2003.)104

Attachment #1Crimes of ViolenceLa. R.S. 14:2 (b)"Crime of violence" means an offense that has, as an element, the use, attempted use,or threatened use of physical force against the person or property of another, and that,by its very nature, involves a substantial risk that physical force against the person orproperty of another may be used in the course of committing the offense, an offensethat involves the possession or use of a dangerous weapon or a crime designated bythe sentencing court. The following enumerated offenses and attempts to commit anyof them are included as "crimes of violence":14.28.1 Solicitation for murder14:30 First degree murder14:30.1 Second degree murder14:31 Manslaughter14:34 Aggravated battery14:34.1 Second degree battery14:34.2 Battery of a Police Officer Added in 2008 by Act 619 effective for conviction on orafter August 15, 200814:34.6 Disarming of a peace officer Added in 2003 by Act 637 effective August 15, 200314:34.7 Aggravated second degree battery Added in 2003 by Act 637 effective August15, 200314:37 Aggravated assault14:37.1 Assault by drive-by shooting14:37.2 Aggravated assault upon a peace officer with a firearm Added in 2003 byAct 637 effective August 15, 200314:37.4 Aggravated assault with a firearm Added in 2003 by Act 637 effective August15, 200314:38.1 Mingling harmful substances14:40.2 Stalking Added in 2003 by Act 637 effective August 15, 200314:42 Aggravated rape14:42.1 Forcible rape14:43 Simple rape14:43.1 Sexual battery14:43.2 Aggravated sexual battery Renamed in 2004 by Act 676 effective August 15, 200414:43.2 Second degree sexual battery Added in 2004 by Act 676 effective August 15,200414:43.3 Oral sexual battery Repealed by Act 301 August 15, 200114:43.4 Aggravated oral sexual battery Repealed by Act 301 August 15, 200114:43.5 Intentional exposure to AIDS virus14:44 Aggravated kidnapping14:44.1 Second degree kidnapping14:45 Simple kidnapping14:46.2 Human Trafficking Added in 2010 by Act 387, August 15, 2010105

14:46.3 Trafficking of children Added in 2010 by Act 387, August 15, 201014:51 Aggravated arson14:55 Aggravated criminal damage to property14:60 Aggravated burglary14:62.8 Home Invasion Added in 2010 by Act 524, August 15, 201014:64 Armed robbery14:64.1 First degree robbery14:64.2 Car jacking14:64.3 Armed robbery; use of firearm; additional penalty Added in 2003by Act 637 effective August 15, 200314:64.4 Aggravated robbery Added in 2003 by Act 637 effective August 15, 200314:64.4 Aggravated robbery Renamed in 2004 by Act 651 effective August 15, 200414:64.4 Second degree robbery Added in 2004 by Act 651 effective August 15,200414:65 Simple robbery14:65.1 Purse snatching14:66 Extortion14:78.1 Aggravated Incest Added in 2006 by Act 72 effective August 15, 200614:89.1 Aggravated crime against nature14:93.2.3 Second degree cruelty to juveniles Added in 2003 by Act 637 effectiveAugust 15, 200314:94 Illegal use of weapons or dangerous instrumentalities Added in1995 by Act 1223 effective August 15, 199514:108.1CAggravated flight from an officer Added in 2003 by Act 637 effective August15, 200314:128.1 Terrorism (1st Ex.Sess.Act 128 June 16, 2002)890.1 Crimes designated by the CourtThe Department considers “Principal Parties” (14:24) to be an enumerated violentcrime to have committed a violent crime.The Department does not consider “Accessory After the Fact” (La. R.S. 14:25) orCriminal Conspiracy to Commit” (La. R.S. 14:26) to be an enumerated crime ofviolence.Enhanced Penalty - Court Discretion - The court may sentence, in addition to any otherpenalty provided by law, any person who is convicted of a crime of violence or of an attempt tocommit any of the crimes as defined in R.S. 14:2(b) with the exception of first degree murder,second degree murder, aggravated assault, aggravated rape and aggravated kidnapping, to anadditional three years imprisonment when the crime victim is 65 years of age or older. (Act 648of the 2001 Regular Session).106

14:41 RapeLIST OF SEX OFFENSESFOR THE PURPOSE OF DENYING GOOD TIME14:42 Aggravated Rape14:42.1 Forcible Rape14:43 Simple Rape14:43.1 Sexual Battery14:43.2 Second Degree Sexual Battery14:43.3 Oral Sexual Battery14:43.5 Intentional Exposure to AIDS Virus14:78 Incest14:78.1 Aggravated Incest14:80 Felony Carnal Knowledge of a Juvenile14:81 Indecent Behavior with Juveniles14:81.1 Pornography Involving Juvenile14:81.2 Molestation of a JuvenileATTACHMENT #214:89(A) (1)Crime Against Nature Added in 2001, by Act 1206 EffectiveAugust 15, 200114:89.1 Aggravated Crime Against NatureA conviction for the attempt of the above offenses shall not be considered as a sex offender for thepurpose of denying good time. (There is an exception in La. R.S. 15:571.3C(4) – Act 223 of the1999 RS)The Department considers “Principal Parties – (La. R.S. 14:24)" of any of the above offenses to bea sex offense.ATTACHMENT #3107

LIST OF SEX OFFENSES REQUIRING RESIDENCE PLAN APPROVALPRIOR TO RELEASE ON SUPERVISION“INCLUDING ATTEMPTS”14:41 Rape14:42 Aggravated Rape14:42.1 Forcible Rape14:43 Simple Rape14:43.1 Sexual Battery14:43.2 Second Degree Sexual Battery14:43.3 Oral Sexual Battery14:43.4 Aggravated Oral Sexual Battery, occurring prior to August 15, 200114:43.5 Intentional Exposure of Aids Virus14:46.2(B)(2) or (3) Human Trafficking14:46.3 Trafficking of Children14:78 Incest14:78.1 Aggravated Incest14:80 Felony Carnal Knowledge of a Juvenile14:81 Indecent Behavior with Juveniles14:81.1 Pornography Involving Juveniles14:81.2 Molestation of a Juvenile14:81.3 Computer Aided Solicitation of a Juvenile14:81.4 Prohibited Sexual Conduct Between an Educator and Student14:89 Crime Against Nature14:89.1 Aggravated Crime Against Nature14:89.2(2) or (3) Crime Against Nature, Solicitation(Second Conviction or to persons under 17)14:92(A) (7)Contributing to the Delinquency of Juveniles(Perform any sexually immoral act)14:93.5 Sexual Battery of the Infirm14:106 (A)(5) Obscenity by Solicitation(of a person under the age of 17)14:283(E)Video Voyeurism14:283.1 Voyeurism, Second or Subsequent OffenseNOTE: Deffered adjudication, adjudication withheld, or a conviction for the perpetration,attempted perpetration, or conspiracy to commit one of the offenses listed above shallbe considered a sex offense.The Department considers “Principal Parties – (La. R.S. 14:24)" of any of the aboveoffenses to be a sex offense.108